Passionate about IP! Since June 2003 the IPKat has covered copyright, patent, trade mark, info-tech, privacy and confidentiality issues from a mainly UK and European perspective. The team is Neil J. Wilkof, Annsley Merelle Ward, Darren Smyth, Nicola Searle, Eleonora Rosati, David Brophy, Alberto Bellan and Merpel, with contributions from Mark Schweizer. You're welcome to read, post comments and participate. You can email the Kats here

From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

(3) a public consultation on the evaluation and modernisation of
the legal framework for the enforcement of intellectual property rights [the deadline for submissions is 1 April 2016]. This consultation
"aims to help assess the functioning of Directive 2004/48/EC on the enforcement of
intellectual property rights (IPRED) in the online environment, with a view to
identify the possible need for adapting such provisions and to propose
corrective measures. It will gather experience on the use and impact of IPRED
and also seek views and opinions from those concerned with the application of
the Directive on its functioning and the possible need for amendments. It also
aims to gather experience and opinions about the use and impact of so-called
'follow the money' initiatives in the area of IPR enforcement."

This Kat has yet to digest all the
news coming from Brussels, but one of the issues of likely greatest interest is
probably what the Commission intends to do/propose in the area of linking.

This is an area that has been
subject to interesting developments over the past couple of years, at both the
judicial and policy/legislative levels.

A biopic on link-providers in Europe?

All those linking
cases: game not over yet

In relation to the former, since
the landmark decision of the Court of Justice of the European Union
(CJEU) inSvensson[Katposts here] debate has
intensified as to whether and under what conditions linking to protected content may
fall within the scope of copyright protection and, as such, possibly amount to
an infringement of the right of communication to the public within Article 3(1)
of the InfoSoc Directive[for a Kat-table summarising what appears to be the current state of the
art/law, click here].

Currently there are two references
for a preliminary ruling pending before the CJEU, seeking clarification on a
number of issues, including whether linking to unlawful content (photographic works hosted on a third-party website and content streaming, respectively) is an act that falls
within the scope of Article 3(1) of the InfoSoc Directive.

In this Kat's opinion, the
response of the CJEU will be in the affirmative: the case of unlawful content is
a scenario in which authorisation to the initial communication was not even
provided. As such, the relevant rightholder had no public in mind for the
sake of applying para 24 of the Svensson decision.

Whether this conclusion is
desirable is a different issue though …

Ancillary
rights over news content in Germany and Spain

As regards policy/legislative
developments in the area of linking, German and Spain introduced an ancillary
right over news content in 2013 and 2014, respectively.

Relevant provisions in the German
Copyright Act (sections 87f, 87g and 87h) provide for
the exclusive right of press publishers to exploit their contents commercially
for one year, thus preventing search engines and news aggregators from displaying non-irrelevant excerpts from newspaper articles without
paying a fee.

As explained here, the German initiative was aimed at
recouping some of the revenues that
traditional news publishers have lost to the web. The underlying idea
was that news aggregators like Google News would not really boost visits to
newspaper websites, but rather have a substitution effect.

What however happened
the very day the new law entered into force was that Google News became opt-in in Germany, with a number of major publishers announcing their intention to waivetheir ancillary right,
and thus be indexed by Google.

Following the German initiative,
Spain also decided to introduce an ancillary right over news content [here and here], with the relevant
difference - however - that, unlike the German version, the Spanish ancillary
right is unwaivable (Article 32 of the Ley de
Propiedad Intelectual, as amended). This means
that the right cannot be waived and requires those who wish to display
non-insignificant excerpts to pay a licence fee.

What happened in Spain
the very day the new Spanish right entered into force was that Google stopped providing its News service in Spain,
with the (possibly unwanted) result that traffic to relevant Spanish news sites
also decreased [here and here].

An EU-wide ancillary right over news content?

In the Communication released on
Wednesday, the Commission announced that it would address "whether any action specific to news
aggregators is needed, including intervening on rights".

As explained on the relevant Q&A section made available by the
Commission,

"The Commission has no
plan to tax hyperlinks. We have no intention to ask people to pay for copyright
when they simply share a hyperlink to content protected by copyright. Europeans
share and post hyperlinks every day and they should remain free to do so [if by “taxing” the Commission intends “paying a licence fee”, then this
statement frankly sounds a bit too bold without any legislative intervention,
considering Svensson and its progeny].

The Commission will
look at the activities of different types of intermediaries in relation to
copyright-protected content. This is a different issue.

News aggregators, for
example, are not only using hyperlinks but also extracts of articles and may
gain revenue doing so.

Different solutions
related to news aggregators, both legislative and market-led, are being tested
at national level. We are closely looking into them and are analysing whether
they deliver on their objectives."

It would thus appear
that an EU-wide ancillary right over news content may be in sight, even just
for consideration.

This seems in line
with one of the first statements by Günther Oettinger as newly appointed EU
Commissioner. As reported by this very blog, The Wall
Street Journal wrote that in a series of interviews with German media,
Mr Oettinger "floated
various anti-Google ideas that could take on a more concrete form when he takes
office". One option was indicated to be to charge Google for
"tak[ing] intellectual
property from the EU and work[ing] with it".

Life's hard when you do NOT want something

What appears ironic
in all this story is that, while the Commission is considering whether to
create new rights over news, the holders-to-be of such ancillary right do
not appear to want it.

As reported by IFRRO, a few days ago a group of
press publishers wrote a letter to the EU Commission, advocating against the introduction of an ancillary
right for press publishers in the EU, on the German and Spanish model.

In particular, the
letter notes the following:

"As publishers,
we know such proposals make it harder for us to be heard, to reach new readers
and new audiences. They create new barriers between us and our readers, new
barriers to entry for news publishers such as ourselves. It will be harder for
us to be present, discovered and accessed by our readers online. It will be
harder for our readers to engage with our stories online, to share links or our
headlines with their friends. It will be harder for us to grow, develop new
sources of information and innovate in our business. Incredibly, in Spain, we
are deprived of control over our own content, since we are not allowed to
disseminate our news without payment, whether we like it or not.

In short, this
legislation is a step away from a forward-looking, modern and diverse European
press. It will only make it harder for us to grow and develop innovative
models. When the dust settles and the Spanish and German laws come into full
force, it may be too late to realise that they are bad for journalism and
European news publishing."

If those who would
benefit from an ancillary right over news content do not want it, then who's
really pushing for its introduction and why?

2 comments:

Great article. Thanks for your thoughtful comments. I cannot agree more with them.

In my view, the granting of an ancillary remuneration right in favor of news publishers seems highly questionable under the Copyright Directive 29/2001, unless (1) publication of news snippets would fall under one of the exceptions in art. 5.2 or 5.3 (otherwise such publication would become be an infringement of exclusive rights under guidance provided in Infopoq, case C-5/08), and (2) news publishers would have the consideration of authors (e.g. because they are considered "collective works"). I doubt that the 2 conditions are met.

Moreover, as mentioned in your article, many online news publishers oppose to the restriction of making not possible for them to waive to such remuneration (as it is the case under art. 32.2 of Spanish Copyright Act). My view is the same; this restriction seems to contradict the basics of the right of property acknowledged under article 17 of the Charter of Fundamental Rights of the EU, under which everyone has the right to dispose of his properties. And no limitation to such right can be implemented without meeting the requirements of art. 52.1 of the Charter, which are not met here either.

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